Luke Beck: The Constitutionality of Australia’s Offshore Detention Regime for Asylum Seekers: Two Very Recent Cases

On a far smaller scale that currently being experienced in Europe, Australia has had an issue with asylum seekers arriving on its shores by boat. The issue is politically contentious and has featured prominently in a number of federal election campaigns. It is Australian policy that asylum seekers who arrive by boat will never be settled in Australia; those who are found to be refugees are to be settled in third countries.

Australia operates a system of offshore processing of asylum seekers who arrive in Australia by boat. Asylum seekers arriving by boat are taken (against their will) to ‘regional processing centres’ where their applications for refugee status are assessed. There is currently a regional processing centre in the small Pacific island nation of Nauru and a centre on Manus Island in Papua New Guinea.

Until recently, asylum seekers were detained, as opposed to simply housed, at these centres. The detention of asylum seekers at both centres has been the subject of very recent constitutional challenges. This post provides an overview of those decisions. There may be lessons for Europe in these decisions given European arrangements to send asylum seekers to Turkey for processing: European nations may still be responsible for what happens to the asylum seekers in Turkey and European assistance to Turkey may be subject to challenge under European law.

The Nauru case

The regional processing centre on Nauru is funded by Australia. In M68/2015 v Minister for Immigration and Border Protection, the High Court of Australia heard a challenge to the constitutionality of Australia funding the Nauru centre. On 3 February 2016, a majority of the High Court rejected that challenge.

Section 198AHA of the Australian Migration Act 1958 authorises the Australian government to enter into arrangements with ‘regional processing countries’ (such as Nauru) in relation to the regional processing of asylum seekers, to take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. Under this law, the Australian government entered into contracts with a private company to operate the Nauru regional processing centre. The centre operates under Nauruan law and the asylum seekers were detained there pursuant Nauruan law.

In the High Court of Australia, the plaintiff argued that this law breached the Lim principle, which limits the circumstances in which the Australian government can detain a person. The plaintiff’s aim was to cut off the funding necessary for the centre to operate thereby bringing about the release from detention of the asylum seekers held there.

As a general proposition, Australian constitutional law holds that the detention of a person is punitive in character and, as a result of the separation of judicial power inherent in the Australian Constitution, can only be done as an incident of the judicial punishment of criminal wrongdoing. This is not an absolute principle. The Lim principle holds that under the Australian Parliament’s power to make laws with respect to ‘aliens’, legislation may authorise the government to detain a non-citizen in custody for the purposes of deportation or for determining whether to admit that non-citizen to Australia.

The plaintiff argued that, in substance, Australia was detaining the asylum seekers on Nauru because that detention was, she said, “funded, authorised, caused, procured and effectively controlled by, and was at the will of, the Commonwealth”. The plaintiff said that this detention did not fall within the Lim principle because once the asylum seekers had arrived in Nauru they had been effectively excluded from Australia.

A majority of the High Court rejected the plaintiff’s argument, but for different reasons.

French CJ, Kiefel and Nettle JJ held that the detention of the plaintiff and other asylum seekers on Nauru was not detention by the Australian Government and therefore the rules limiting the Australian Government’s ability to detain a person were not engaged. They held that Nauru detained the plaintiff: “The plaintiff thereafter was detained in custody under the laws of Nauru, administered by the Executive government of Nauru”. The fact that the Australian Government’s “involvement was materially supportive, if not a necessary condition, of Nauru’s physical capacity to detain” did not mean that the Australian Government was itself detaining the plaintiff. Justice Keane in his separate judgment gave similar reasons for the same conclusion.

Justice Bell accepted that the plaintiff’s detention was “as a matter of substance, caused and effectively controlled by” the Australian Government and that this would be unconstitutional unless it fell within Lim. Her Honour held that the situation was within Lim: “the requirement for transferees to be detained, while the administrative processes involved in the investigation, assessment and review of their claims take place, does not thereby take on the character of being punitive.” It would only be if a person were detained for longer than necessary to process their application for asylum that the Australian Government’s involvement in the detention would be unconstitutional.

Similarly, Gageler J held that the plaintiff was physically detained by officers of the private contractor running the centre who were acting effectively as agents of the Australian Government. Like Bell J, his Honour held that the situation fell within the Lim principle.

Justice Gordon, the newest member of the High Court, dissented. Her Honour held that it was the Australian Government, for the reasons advanced by the plaintiff, that was in fact detaining the plaintiff and that the situation did not fall within the exception in Lim:

“Removal from Australia was complete when the Plaintiff arrived on Nauru. Moreover, the detention by the Commonwealth on Nauru was not necessary to enable an application for an entry permit to Australia to be made and considered. The Plaintiff is unable to make such an application [under the provisions of the Migration Act 1958]. Further, the Plaintiff’s detention by the Commonwealth on Nauru could not have been for the purpose of completing Australia’s obligation to consider her application for refugee status, because that obligation rested on Nauru.”

There was an interesting development in the facts before the High Court handed down its judgment. The Government of Nauru announced that it intended to change the law to implement an ‘open centre’ arrangement allowing asylum seekers freedom of movement subject to a requirement to reside at the processing centre. The purpose of this change was obviously to save the operation of the centre (which provides employment to Naurans) by making it clear that asylum seekers are not actually ‘detained’ at the processing centre.

The Manus Island case

The regional processing centre on Manus Island operated in a similar manner to the one in Nauru. In Namah v Papua New Guinea, the Belden Namah, who is Leader of the Opposition in the PNG Parliament, challenged the constitutionality of the detention of the 850 male asylum seekers held at the centre under the Constitution of Papua New Guinea.

On 26 April 2016, the Supreme Court of Papua New Guinea unanimously held that the detention of asylum seekers in the Manus Island processing centre breached the right to individual liberty guaranteed by the Constitution of Papua New Guinea. Separate judgments were delivered by Kandakasi and Higgins JJ. Salika DCJ, Sakora and Sawong JJ expressed their agreement with both judgments.

Section 42(1) of the PNG Constitution provides that “No person shall be deprived of his personal liberty except” in a number of circumstances enumerated in the section. None of the circumstances enumerated are relevant the situation of the asylum seekers in the Manus Island processing centre.

To overcome the constitutional impediment to detaining the asylum seekers, the PNG Government rushed an amendment to s 42(1) through the PNG Parliament. The Constitution Amendment (No 37) (Citizenship Law) 2014 purported to add a new paragraph (ga) to s 42(1) to explicitly cover the situation. That paragraph read: “for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matter, in his absolute discretion, approve.”

The Supreme Court held that the constitutional amendment was invalid because it did not comply with the formal substantive requirements laid out in s 38 of the PNG Constitution for enacting laws that restrict or regulate rights protected by the PNG Constitution. The procedural failures included that that the amending law (1) did not specify the purpose of the amendment, (2) specify which right or rights it purports to regulate or restrict, and (3) did not state that the restriction on rights effected by the amendment is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

It followed that the detention of asylum seekers in the Manus Island processing centre was a breach of s 42(1) and therefore unconstitutional.

The Supreme Court also held that even if paragraph (ga) of s 42(1) had been validly enacted, it would not of itself render the detention of the asylum seekers lawful. That paragraph would have allowed the PNG Parliament to enact legislation that was constitutionally valid to authorise the detention of the asylum seekers. However,the PNG Parliament had not enacted any legislation permitting the detention of the asylum seekers. The PNG Government had simply detained them without any legislative authority.

The Court ordered that:

“Both the Australian and Papua New Guinea government shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers or transferees [sic] Constitutional and human rights.”

It is curious that the Court made an order purporting to bind the Australian Government since the Australian Government was not a party to the proceedings.

The future of Australia’s offshore processing regime

Given that the PNG Supreme Court’s ruling is only very recent, it is not yet clear how the PNG and Australian governments intend to respond.

Following the PNG Supreme Court decision, the Australian Minister for Immigration and Border Protection reiterated the Australian Government’s policy position that asylum seekers who arrive by boat will not be permitted to settle in Australia.

There are a number of possible responses. It is possible that the PNG Government might attempt to enact legislation, complying with all procedural and substantive constitutional requirements, to authorise the detention of the asylum seekers on Manus Island. It is possible that the Manus Island processing centre’s operations might change so that it is an ‘open’ centre like the Nauru processing centre now is where asylum seekers are not technically ‘detained’.

It is also possible that the Australian Government might facilitate the transfer of the Manus Island asylum seekers to Nauru.

The Manus Island asylum seekers may also respond with further litigation. There is also media speculation that the Manus Island asylum seekers may sue the Australian and PNG governments for compensation for their unlawful detention.

Dr Luke Beck is a constitutional law lecturer at Western Sydney University, Australia.